AVAGO TECHNOLOGIES FINANCE PTE. LTD. AVAGO TECHNOLOGIES U.S. INC. AVAGO TECHNOLOGIES WIRELESS (U.S.A.) MANUFACTURING INC. $500,000,000 101/8% SENIOR NOTES DUE 2013 $250,000,000 SENIOR FLOATING RATE NOTES DUE 2013 $250,000,000 117/8% SENIOR...
Exhibit-4.5
Execution
Version
AVAGO TECHNOLOGIES FINANCE PTE. LTD.
AVAGO TECHNOLOGIES U.S. INC.
AVAGO TECHNOLOGIES WIRELESS (U.S.A.) MANUFACTURING INC.
AVAGO TECHNOLOGIES U.S. INC.
AVAGO TECHNOLOGIES WIRELESS (U.S.A.) MANUFACTURING INC.
$500,000,000
101/8% SENIOR NOTES DUE 2013
$250,000,000 SENIOR FLOATING RATE NOTES DUE 2013
$250,000,000
117/8% SENIOR SUBORDINATED NOTES DUE 2015
December 1, 2005
Xxxxxx Brothers Inc.
Citigroup Global Markets Singapore Pte. Ltd.
Credit Suisse First Boston (Singapore) Limited
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Singapore Pte. Ltd.
Credit Suisse First Boston (Singapore) Limited
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Avago Technologies Finance Pte. Ltd, a Singapore private limited company (the “Company”),
Avago Technologies U.S. Inc., a Delaware corporation (“Avago U.S.”), and Avago Technologies
Wireless (U.S.A.) Manufacturing Inc., a Delaware corporation (together with the Company and Avago
U.S., the “Issuers”), propose to issue and sell (the “Initial Placement”) to Xxxxxx Brothers Inc.,
Citigroup Global Markets Singapore Pte. Ltd. and Credit Suisse First Boston (Singapore) Limited
(the “Initial Purchasers”) upon terms set forth in a purchase agreement dated as of November 21,
2005 (the “Purchase Agreement”) among the Issuers, the guarantors party thereto (the “Guarantors”)
and the Initial Purchasers, $500,000,000 of its 101/8% Senior Notes due 2013 (the “Fixed Rate Senior
Notes”), $250,000,000 of its Senior Floating Rate Notes due 2013 (the “Floating Rate Senior Notes”,
the Floating Rate Senior Notes and the Fixed Rate Senior Notes, together, the “Senior Notes”), and
$250,000,000 of its
117/8% Senior Subordinated Notes due 2015 (the “Senior Subordinated Notes” and,
together with the Senior Notes, the “Initial Notes”). As an inducement to you to enter into the
Purchase Agreement and purchase the Initial Notes and in satisfaction of a condition to your
obligations under the Purchase Agreement, the Issuers and the Guarantors agree with you for the
benefit of the holders from time to time of the Initial Notes (including the Initial Purchasers)
(each of the foregoing a “Holder” and together the “Holders”), as follows:
“Affiliate” of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common control with
such specified person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common control
with”), as used with respect to any person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of
such person, whether through the ownership of voting securities, by agreement or otherwise.
“Business Day” shall have the meaning ascribed to such term in Rule 14d-1
under the Exchange Act.
“Closing Date” has the meaning set forth in the Purchase Agreement.
“Commission” means the Securities and Exchange Commission.
“Company” has the meaning set forth in the preamble hereto.
“Damages Payment Date” means, with respect to the Initial Notes, each date on
which interest is paid in accordance with the Indentures.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Exchange Guarantees” means guarantees issued by the Guarantors with respect
to the Exchange Notes, identical in all material respects to the Guarantees issued with
respect to the Initial Notes.
“Exchange Notes” means securities issued by the Issuers, identical in all
material respects to the Fixed Rate Senior Notes, Floating Rate Senior Notes or Senior
Subordinated Notes, as applicable, to be issued under the applicable Indenture, except that
(i) the Exchange Notes shall contain no restrictive legend thereon, (ii) interest thereon
shall accrue from the last date on which interest was paid on such Initial Notes or, if no
such interest has been paid, from the date of the applicable Indenture and (iii) they shall
be entitled to the benefits of the applicable Indenture or a trust indenture which is
identical in all material respects to the applicable Indenture (other than such changes to
the applicable Indenture or any such identical trust indenture as are necessary to comply
with the Trust Indenture Act) and which, in either case, has been qualified under the Trust
Indenture Act.
“Exchange Offer” means the proposed offer to the Holders to issue and deliver
to such Holders, in exchange for the Initial Notes and the Guarantees, a like aggregate
principal amount of Exchange Notes and the Exchange Guarantees.
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“Exchange Offer Registration Period” means the longer of (A) the period until
the consummation of the Exchange Offer and (B) two years after the date of the Indentures,
exclusive of any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided,
however, that in the event that all resales of Exchange Notes (including, subject
to the time periods set forth herein, any resales by Participating Dealers) covered by such
Exchange Offer Registration Statement have been made, the Exchange Offer Registration
Statement need not remain continuously effective for the period set forth in clause (B)
above.
“Exchange Offer Registration Statement” means a registration statement of the
Issuers and the Guarantors on an appropriate form under the Securities Act with respect to
the Exchange Offer, all amendments and supplements to such Registration Statement,
including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.
“Fixed Rate Senior Notes” has the meaning set forth in the preamble hereto.
“Floating Rate Senior Notes” has the meaning set forth in the preamble hereto.
“Guarantee” means the guarantee by any Guarantor of the Issuers’ Obligations
under the Indenture.
“Guarantors” has the meaning set forth in the preamble hereto.
“Holder” has the meaning set forth in the preamble hereto.
“Indentures” means the Indenture, dated as of December 1, 2005, between the
Issuers, the Guarantors and The Bank of New York, as trustee, pursuant to which the Senior
Notes are to be issued and the Indenture, dated as of December 1, 2005, between the
Issuers, the Guarantors and The Bank of New York, as trustee, pursuant to which the Senior
Subordinated Notes are to be issued, as each such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
“Initial Notes” has the meaning set forth in the preamble hereto, for so long
as such securities constitute Transfer Restricted Securities.
“Initial Placement” has the meaning set forth in the preamble hereto.
“Initial Purchasers” has the meaning set forth in the preamble hereto.
“Issuers” has the meaning set forth in the preamble hereto.
“Losses” has the meaning set forth in Section 6(d) hereto.
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“Majority Holders” means the Holders of a majority of the aggregate principal
amount of Notes registered under a Registration Statement.
“Managing Underwriters” means the investment banker or investment bankers and
manager or managers that shall administer an underwritten offering under a Shelf
Registration Statement.
“Notes” means the Initial Notes and Exchange Notes.
“Offering Memorandum” has the meaning set forth in the Purchase Agreement.
“Participating Dealer” means any Holder (which may include the Initial
Purchasers) that is a broker-dealer, electing to exchange Notes acquired for its own
account as a result of market-making activities or other trading activities for Exchange
Notes.
“Prospectus” means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the Notes covered
by such Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
“Purchase Agreement” has the meaning set forth in the preamble hereto.
“Registration Default” has the meaning set forth in Section 5(b) hereof.
“Registration Statement” means any Exchange Offer Registration Statement or
Shelf Registration Statement pursuant to the provisions of this Agreement, amendments and
supplements to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto, and all material
incorporated by reference therein.
“Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Senior Notes” has the meaning set forth in the preamble hereto.
“Senior Subordinated Notes” has the meaning set forth in the preamble hereto.
“Shelf Registration” means a registration effected pursuant to Section 3
hereof.
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“Shelf Registration Period” has the meaning set forth in Section 3(b) hereof.
“Shelf Registration Statement” means a “shelf” registration statement of the
Issuers and the Guarantors pursuant to the provisions of Section 3 hereof, which covers
some or all of the Initial Notes or Exchange Notes, as applicable, and the related
Guarantees or Exchange Guarantees on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
“Transfer Restricted Securities” means each Initial Note until: (i) the date
on which such Initial Note has been exchanged by a Person other than a broker-dealer for an
Exchange Note in the Exchange Offer; (ii) following the exchange by a broker-dealer in the
Exchange Offer of a Note for an Exchange Note, the date on which such Exchange Note is sold
to a purchaser who receives from such broker-dealer on or prior to the date of such sale a
copy of the Prospectus contained in the Exchange Offer Registration Statement; (iii) the
date on which such Note has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement; or (iv) the date on which
such Note is distributed to the public pursuant to Rule 144 under the Securities Act.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trustee” means The Bank of New York and any successors thereto.
“Underwriter” means any underwriter of Notes and Guarantees in connection with
an offering thereof under a Shelf Registration Statement.
“Underwritten Registration” or “Underwritten Offering” means a registration in
which the Notes of the Issuers are sold to an underwriter for reoffering to the public.
(a) The Issuers and the Guarantors shall use their reasonable best efforts to
consummate the Exchange Offer on or prior to the 360th calendar day following the Closing
Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers
and the Guarantors shall promptly commence the Exchange Offer, it being the objective of
such Exchange Offer to enable each Holder electing to exchange Initial Notes for Exchange
Notes (assuming that such Holder (x) is not an “affiliate” of any of the Issuers within the
meaning of the Securities
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Act, (y) is not a broker-dealer that acquired the Initial Notes in a transaction other
than as a part of its market-making or other trading activities and (z) if such Holder is
not a broker-dealer, acquires the Exchange Notes in the ordinary course of such Holder’s
business, is not participating in the distribution of the Exchange Notes and has no
arrangements or understandings with any person to participate in the distribution of the
Exchange Notes) to resell such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and without material restrictions
under the securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Exchange Offer, the Issuers shall mail to each Holder a
copy of the Prospectus forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents, stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Initial Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Initial Notes not tendered will remain outstanding and continue
to accrue interest, but will not retain any rights under this Agreement;
(iv) that Holders electing to have Initial Notes exchanged pursuant to the
Exchange Offer will be required to surrender such Initial Notes, together with the
enclosed letters of transmittal, to the institution and at the address (located in
the Borough of Manhattan, The City of New York) specified in the notice prior to
the close of business on the last day of acceptance for exchange; and
(v) that Holders will be entitled to withdraw their election, not later than
the close of business on the last day of acceptance for exchange, by sending to the
institution and at the address (located in the Borough of Manhattan, The City of
New York) specified in the notice a facsimile transmission or letter setting forth
the name of such Holder, the aggregate principal amount of Initial Notes delivered
for exchange and a statement that such Holder is withdrawing his election to have
such Initial Notes exchanged; and shall keep the Exchange Offer open for acceptance
for not less than 20 Business Days (or longer if required by applicable law) after
the date notice thereof is mailed to the Holders; utilize the services of a
depositary for the Exchange Offer with an address in the Borough of Manhattan, The
City of New York; and comply in all respects with all applicable laws relating to
the Exchange Offer.
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(d) As soon as practicable after the close of the Exchange Offer, the Issuers shall:
(i) accept for exchange all Initial Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Initial Notes so accepted for
exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder
Exchange Notes equal in principal amount to the Initial Notes of such Holder so
accepted for exchange.
(e) The Initial Purchasers, the Issuers and the Guarantors acknowledge that, pursuant
to interpretations by the staff of the Commission of Section 5 of the Securities Act, and
in the absence of an applicable exemption therefrom, each Participating Dealer is required
to deliver a Prospectus in connection with a sale of any Exchange Notes received by such
Participating Dealer pursuant to the Exchange Offer in exchange for Initial Notes acquired
for its own account as a result of market-making activities or other trading activities.
Accordingly, the Issuers and Guarantors shall:
(i) include the information set forth in Annex A hereto on the cover of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth details of the
Exchange Offer, in Annex C hereto in the underwriting or plan of distribution
section of the Prospectus forming a part of the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to
the Exchange Offer; and
(ii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the Exchange Offer
Registration Period for delivery of the Prospectus included therein by
Participating Dealers in connection with sales of Exchange Notes received pursuant
to the Exchange Offer, as contemplated by Section 4(h) below; provided,
however, that the Issuers and the Guarantors shall not be required to
maintain the effectiveness of the Exchange Offer Registration Statement for more
than 30 days following the consummation of the Exchange Offer unless the Issuers
have been notified in writing on or prior to the 30th day following the
consummation of the Exchange Offer by one or more Participating Dealers that such
Holder has received Exchange Notes as to which it will be required to deliver a
prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it is not eligible to
participate in the Exchange Offer with respect to the exchange of Initial Notes
constituting any portion of an unsold allotment, upon the effectiveness of
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the Shelf Registration Statement as contemplated by Section 3 hereof and at the
request of the Initial Purchasers, the Issuers shall issue and deliver to the Initial
Purchasers, or to the party purchasing Initial Notes registered under the Shelf
Registration Statement from the Initial Purchasers, in exchange for such Initial Notes, a
like principal amount of Exchange Notes. The Issuers shall use their reasonable best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Notes as for Exchange Notes issued pursuant to the Exchange Offer.
(g) The Issuers and the Guarantors shall use their reasonable best efforts to complete
the Exchange Offer as provided above and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers and the Guarantors to proceed with the
Exchange Offer, and no material adverse development shall have occurred in any existing
action or proceeding with respect to the Issuers and the Guarantors and (iii) all
governmental approvals shall have been obtained, which approvals the Issuers deem necessary
for the consummation of the Exchange Offer. The Issuers shall inform the Initial
Purchasers, upon their request, of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the tender of Initial
Notes in the Exchange Offer.
(h) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the
request of any of the Issuers, prior to the consummation thereof, a written representation
to the Issuers (which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an affiliate of any
of the Issuers, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring the Exchange
Notes in its ordinary course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Issuers and the Guarantors’
preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any
broker-dealer and any such Holder using the Exchange Offer to participate in a distribution
of the securities to be acquired in the Exchange Offer (1) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters, and (2) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a
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secondary resale transaction and that such a secondary resale transaction should be
covered by an effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K if the resales
are of Exchange Notes obtained by such Holder in exchange for Initial Notes acquired by
such Holder directly from the Issuers.
(a) The Issuers and the Guarantors shall use their reasonable best efforts to, as
promptly as practicable, file with the Commission a Shelf Registration Statement relating
to the offer and sale of the Initial Notes and Guarantees or the Exchange Notes and
Exchange Guarantees, as applicable, by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf Registration
Statement and Rule 415 under the Securities Act, provided that, with respect to
Exchange Notes and Exchange Guarantees received by the Initial Purchasers in exchange for
Initial Notes and the Guarantees constituting any portion of an unsold allotment, the
Issuers and the Guarantors may, if permitted by current interpretations by the Commission’s
staff, file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (a) with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall be referred to herein as,
and governed by the provisions herein applicable to, a Shelf Registration Statement.
(b) The Issuers and the Guarantors shall use their reasonable best efforts to cause
the Shelf Registration Statement to be declared effective under the Securities Act on or
prior to the 180th calendar day after the obligation to file a
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Shelf Registration Statement under this Section 3 arises and to keep such Shelf
Registration Statement continuously effective in order to permit the Prospectus contained
therein to be usable by Holders until the earliest of (i) two years after the original
issue date of the Notes covered thereby; provided that this clause (i) shall not be
considered in determining the time until which the Shelf Registration Statement remains
effective for any Holder that is an Affiliate of the Investors (as defined in the
Indentures), (ii) such time as all of the Notes have been sold thereunder or (iii) the date
upon which all Notes covered by such Shelf Registration Statement become eligible for
resale, without regard to volume, manner of sale or other restrictions contained in Rule
144(k) (in any such case, such period being called the “Shelf Registration Period”). The
Issuers and the Guarantors shall be deemed not to have used their reasonable best efforts
to keep the Shelf Registration Statement effective during the requisite period if the
Issuers or the Guarantors voluntarily take any action that would result in Holders of Notes
covered thereby not being able to offer and sell such Notes during that period, unless (i)
such action is required by applicable law, (ii) the Issuers and the Guarantors comply with
this Agreement or (iii) such action is taken by the Issuers or the Guarantors in good faith
and for valid business reasons (not including avoidance of the Issuers’ or the Guarantors’
obligations hereunder), including the acquisition or divestiture of assets, so long as the
Issuers promptly thereafter comply with the requirements of Section 4(m) hereof, if
applicable.
(a) The Issuers shall, within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel,
upon their request) and make such representatives of the Issuers as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel) available for discussion of
such document, and shall not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to a Registration Statement or
a Prospectus or any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel)
shall object, except for any amendment or supplement or document (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, the Majority Holders and their counsel, upon their request))
which
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counsel to the Issuers shall advise the Issuers, in the form of a written opinion, is
required in order to comply with applicable law; the Initial Purchasers agree that, if it
receives timely notice and drafts under this clause (a), it will not take actions or make
objections pursuant to this clause (a) such that the Issuers are unable to comply with its
obligations under Section 2.
(b) The Issuers shall use their reasonable best efforts to ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus
contained therein and any amendment or supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements
therein not misleading; and
(iii) any Prospectus forming part of any Registration Statement, including any
amendment or supplement to such Prospectus, does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading.
(c) (1) The Issuers shall advise the Initial Purchasers and, in the case of a Shelf
Registration Statement, the Holders of Initial Notes covered thereby, and, if requested by
the Initial Purchasers or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto has been filed
with the Commission and when the Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus included therein or for additional
information.
(2) During the Shelf Registration Period or the Exchange Offer Registration Period, as
applicable, the Issuers shall advise the Initial Purchasers and, in the case of a Shelf
Registration Statement, the Holders of Initial Notes or Exchange Notes covered thereby,
and, in the case of an Exchange Offer Registration Statement, any Participating Dealer that
has provided in writing to the Issuers a telephone or facsimile number and address for
notices, and, if requested by the Initial Purchasers or any such Holder or Participating
Dealer, confirm such advice in writing:
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(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose;
(ii) of the receipt by any of the Issuers of any notification with respect to
the suspension of the qualification of the Initial Notes or Exchange Notes included
therein for sale in any jurisdiction or the initiation of any proceeding for such
purpose; and
(iii) of the happening of any event that requires the making of any changes in
the Registration Statement or the Prospectus so that, as of such date, the
Registration Statement or the Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading (which advice shall be accompanied by an instruction
to suspend the use of the Prospectus until the requisite changes have been made).
(d) The Issuers shall and the Guarantors use their reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of any Registration Statement at
the earliest possible time.
(e) The Issuers shall furnish to each Holder of Notes covered by any Shelf
Registration Statement that so requests, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all exhibits thereto.
(f) The Issuers shall, during the Shelf Registration Period, deliver to each Holder of
Notes covered by any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably request;
and the Issuers consent to the use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of Notes in connection with the offering and sale of the
Notes covered by the Prospectus or any amendment or supplement thereto.
(g) The Issuers shall furnish to each Participating Dealer that so requests, without
charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules, any
documents incorporated by reference therein and, if the Participating Dealer so requests in
writing, all exhibits thereto.
(h) The Issuers shall, during the Exchange Offer Registration Period, promptly deliver
to each Participating Dealer, without charge, as many copies of the Prospectus included in
such Exchange Offer Registration Statement and any amendment or supplement thereto as such
Participating Dealer may reasonably
12
request for delivery by such Participating Dealer in connection with a sale of
Exchange Notes received by it pursuant to the Exchange Offer; and the Issuers consent to
the use of the Prospectus or any amendment or supplement thereto by any such Participating
Dealer, as provided in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by its acquisition of such
Notes to be sold by such Exchange Dealer, as the case may be, that, upon actual receipt of
any notice from the Issuers of the happening of any event of the kind described in
paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii) of this Section 4, such Holder will
forthwith discontinue disposition of such Notes covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Exchange Dealer, as the case may
be, until such Holder’s or Exchange Dealer’s receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(m) hereof, or until it is advised in writing
by the Issuers that the use of the applicable Prospectus may be resumed, and has received
copies of any amendments or supplements thereto. In the event that the Issuers shall give
any such notice, the Exchange Offer Registration Period shall be extended by the number of
days during such periods from and including the date of the giving of such notice to and
including the date when each seller of the Exchange Notes covered by such Registration
Statement or Exchange Notes to be sold by such Exchange Dealer, as the case may be, shall
have received (x) the copies of the supplemented or amended Prospectus contemplated by
Section 4(m) hereof or (y) the advice in writing.
(j) Prior to the Exchange Offer or any other offering of Initial Notes or Exchange
Notes pursuant to any Registration Statement, the Issuers and the Guarantors shall register
or qualify or cooperate with the Holders of Notes included therein and their respective
counsel in connection with the registration or qualification of such Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders reasonably
request in writing and do any and all other acts or things necessary or advisable to enable
the offer and sale in such states of the Notes covered by such Registration Statement;
provided, however, that none of the Issuers and the Guarantors will be
required to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which they are not then so qualified, to file any general consent to
service of process or to take any action that would subject any of them to general service
of process in any such jurisdiction where they are not then so subject or to subject
themselves to taxation in respect of doing business in any jurisdiction in which they are
not otherwise so subject.
(k) The Issuers shall issue, upon the request of any Holder of Initial Notes covered
by the Shelf Registration Statement, Exchange Notes, having an aggregate principal amount
equal to the aggregate principal amount of Initial Notes surrendered to the Issuers by such
Holder in exchange therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the purchaser(s) of such Exchange
Notes, as the case
13
may be; in return, the Initial Notes held by such Holder shall be surrendered to the
Issuers for cancellation.
(l) The Issuers shall cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Initial Notes or Exchange Notes to be sold
pursuant to any Registration Statement free of any restrictive legends and in minimum
denominations of $2,000 or an integral multiple of $1,000 in excess thereof and registered
in such names as Holders may request prior to sales of Initial Notes or Exchange Notes
pursuant to such Registration Statement.
(m) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii) of this
Section 4, the Issuers and the Guarantors shall promptly prepare and file a post-effective
amendment to any Registration Statement or an amendment or supplement to the related
Prospectus or any other required document so that, as thereafter delivered to purchasers of
the Notes included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading and, in the case
of a Shelf Registration Statement, notify the Holders to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event. Notwithstanding the
foregoing, the Issuers and the Guarantors shall not be required to amend or supplement a
Shelf Registration Statement, any related Prospectus or any document incorporated therein
by reference, for a reasonable period of time, but not in excess of 60 consecutive days or
more than three times during any calendar year, if the respective Boards of Directors of
the Issuers determine reasonably and in good faith that the filing of any such Shelf
Registration Statement or the continuing effectiveness thereof would require the disclosure
of non-public material information that, in the reasonable judgment of the respective
Boards of Directors of the Issuers, would be detrimental to the Issuers if so disclosed or
would otherwise materially adversely affect a financing, acquisition, disposition, merger
or other material transaction or such action is required by applicable law.
(n) Not later than the effective date of any such Registration Statement hereunder,
the Issuers shall provide a CUSIP number for the Initial Notes or Exchange Notes, as the
case may be, registered under such Registration Statement, and provide the Trustee with
certificates for such Initial Notes or Exchange Notes, in a form eligible for deposit with
The Depository Trust Company.
(o) The Issuers and the Guarantors shall use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission and shall make generally
available to their security holders with regard to any applicable Registration Statement, a
consolidated earning statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the
14
end of any fiscal quarter (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in which
registrable securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month periods; provided that
this requirement shall be deemed satisfied by the Issuer complying with Section 4.03 of the
Senior Notes Indenture or Section 4.03 of the Senior Subordinated Notes Indenture.
(p) The Issuers and the Guarantors shall use their reasonable best efforts to cause
the Indentures to be qualified under the Trust Indenture Act not later than the effective
date of the first Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Notes to effect such changes to
the Indentures as may be required for the Indentures to be so qualified in accordance with
the terms of the Trust Indenture Act; and to execute and use their reasonable best efforts
to cause the Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission to enable the
Indentures to be so qualified in a timely manner.
(q) The Issuers may require each Holder of Initial Notes to be sold pursuant to any
Shelf Registration Statement to furnish to the Issuers such information regarding the
Holder and the distribution of such Initial Notes as the Issuers may from time to time
reasonably require for inclusion in such Registration Statement.
(r) The Issuers shall, if requested, promptly incorporate in a Prospectus supplement
or post-effective amendment to a Shelf Registration Statement, such information as the
Managing Underwriters, if any, and Majority Holders reasonably agree should be included
therein, and shall use their reasonable best efforts to make all required filings of such
Prospectus supplement or post-effective amendment promptly upon notification of the matters
to be incorporated in such Prospectus supplement or post-effective amendment.
(s) In the case of any Shelf Registration Statement, the Issuers and the Guarantors
shall use their reasonable best efforts to enter into such agreements (including
underwriting agreements) and take all other appropriate actions in order to expedite or to
facilitate the registration or the disposition of any Initial Notes included therein, and
in connection therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those set forth in
Section 6 (or such other provisions and procedures acceptable to the Majority Holders and
the Managing Underwriters, if any) with respect to all parties to be indemnified pursuant
to Section 6.
15
(t) In the case of any Shelf Registration Statement, the Issuers shall use their
reasonable best efforts to:
(i) make reasonably available for inspection by the Holders of Notes to be
registered thereunder, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Issuers and any of
their subsidiaries;
(ii) cause the Issuers’ officers, directors and employees to supply all
relevant information reasonably requested by the Holders or any such underwriter,
attorney, accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations and make such representatives
of the Issuers as shall be reasonably requested by the Initial Purchasers or
Managing Underwriters, if any, available for discussion of any such Registration
Statement; provided, however, that any non-public information that
is designated in writing by the Issuers, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an accompanying
obligation of confidentiality other than as a result of a disclosure of such
information by any such Holder, underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the Holders of Notes
registered thereunder and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(iv) obtain opinions of counsel to the Issuers and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily covered in
opinions requested in similar underwritten offerings and such other matters as may
be reasonably requested by such Holders and underwriters;
(v) obtain “cold comfort” letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial data
are, or are required to be, included in the Registration Statement), addressed to
the underwriters, if any, and use reasonable efforts to have such letter addressed
to the selling
16
Holders of Notes registered thereunder (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of Certified
Public Accountants (AICPA) (“SAS 72”)), in customary form and covering matters of
the type customarily covered in “cold comfort” letters in connection with similar
underwritten offerings, or if the provision of such “cold comfort” letters is not
permitted by SAS 72 or if requested by the Initial Purchasers or their counsel in
lieu of a “cold comfort” letter, an agreed-upon procedures letter under Statement
on Auditing Standards No. 75 of the AICPA, covering matters requested by the
Initial Purchasers or their counsel; and
(vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, and customarily
delivered in similar offerings, including those to evidence compliance with Section
4(m) and with any conditions contained in the underwriting agreement or other
agreement entered into by the Issuers.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(t) shall be performed at (A) the effectiveness of such Shelf Registration Statement and
each post-effective amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(u) The Issuers and the Guarantors shall, in the case of a Shelf Registration, use
their reasonable best efforts to cause all Notes to be listed on any securities exchange or
any automated quotation system on which similar securities issued by the Issuers are then
listed if requested by the Majority Holders, to the extent such Notes satisfy applicable
listing requirements.
(a) The Issuers and the Guarantors shall bear all expenses incurred in connection with
the performance of their obligations under Sections 2, 3 and 4 hereof, including without
limitation: (i) all Commission, stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters or Holders in connection with blue
sky qualification of any of the Exchange Notes and Exchange Guarantees or Initial Notes and
Guarantees), (iii) all expenses of any persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this Agreement, (iv)
the fees and disbursements of the Trustee and its counsel, (v) the fees and disbursements
of any exchange agent engaged in connection with the Exchange Offer and its counsel, (vi)
the fees and disbursements of counsel for the Issuers and, in the case of a Shelf
Registration
17
Statement, the fees and disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel may also be counsel for the
Initial Purchasers) and in the case of any Exchange Offer Registration Statement, the fees
and expenses of one counsel to the Initial Purchasers acting in connection therewith and
(vii) the fees and disbursements of the independent public accountants of the Company,
including the expenses of any special audits or “cold comfort” letters required by or
incident to such performance and compliance, but excluding fees and expenses of counsel to
the underwriters (other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Notes by a Holder.
(b) In the event that:
(i) Either the Exchange Offer is not consummated or the Shelf Registration
Statement is not declared effective by the Commission on or prior to the 360th day
after the Closing Date; or
(ii) the Shelf Registration Statement or the Exchange Offer Registration
Statement is declared effective but thereafter ceases to be effective or usable in
connection with the resales of Transfer Restricted Securities during the periods
specified in this Registration Rights Agreement (each such event referred to in
clauses (i) and (ii), a “Registration Default”),
then the Issuers will pay additional interest (“Additional Interest”) to each holder of
Notes, with respect to the first 90-day period immediately following the occurrence of the
first Registration Default at a rate of 0.25% per annum. The amount of the Additional
Interest will increase by an additional 0.25% per annum with respect to each subsequent
90-day period until all Registration Defaults have been cured, provided that the rate at
which such Additional Interest accrues may in no event exceed 1.0% per annum.
(c) The Issuers shall pay all accrued Additional Interest on each Damages Payment Date
to the Global Note Holder by wire transfer of immediately available funds and to holders of
Certificate Notes by wire transfer to the accounts specified by them or by mailing checks
to their registered addresses if no such accounts have been specified.
(d) The Issuers shall notify the Trustee of any amount of Additional Interest to be
paid to the Global Note Holder on each Damages Payment Date and the method by which the
amount of Additional Interest was calculated.
(e) Following the cure of all Registration Defaults, the accrual of Additional
Interest will cease.
18
(f) Without limiting the remedies available to the Initial Purchasers and the Holders,
the Issuers and the Guarantors acknowledge that any failure by the Issuers and the
Guarantors to comply with its obligations under Sections 2 and 3 hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Issuers’ and the
Guarantors’ obligations under Sections 2 and 3 hereof.
(a) In connection with any Registration Statement, the Issuers and the Guarantors
agree to indemnify and hold harmless each Holder of Notes covered thereby (including the
Initial Purchasers and, with respect to any Prospectus delivery as contemplated by Sections
2(e) and 4(g) hereof, each Participating Dealer) the directors, officers, employees and
Affiliates of such Holder and each person who controls such Holder within the meaning of
either the Securities Act or the Exchange Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other U.S. federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such Registration
Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus
or Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage or liability (or action in respect thereof); provided,
however, that the Issuers and the Guarantors will not be liable in any case to the
extent that any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the
Issuers by or on behalf of any such indemnified party specifically for inclusion therein;
provided further, however, that the Issuers and the Guarantors will
not be liable in any case with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto to the extent that any such loss, claim, damage or
liability (or action in respect thereof) resulted from the fact that any indemnified party
sold Notes to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus as then amended or supplemented, if the
Issuers had previously complied with the provisions of Section 4(c)(2) and 4(f) or 4(h)
hereof and if the
19
untrue statement contained in or omission from such preliminary Prospectus or
Prospectus was corrected in the Prospectus as then amended or supplemented. This indemnity
agreement will be in addition to any liability that the Issuers and the Guarantors may
otherwise have. The Issuers and the Guarantors shall not be liable under this Section 6 to
any indemnified party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent is consented to by the Issuers, which consent shall
not be unreasonably withheld.
The Issuers and the Guarantors also agree to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Notes registered under a Shelf
Registration Statement, their employees, officers, directors and Affiliates and each person
who controls such underwriters on the same basis as that of the indemnification of the
Initial Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(s) hereof.
(b) Each Holder of Notes covered by a Registration Statement (including the Initial
Purchasers and, with respect to any Prospectus delivery as contemplated by Sections 2(e)
and 4(h) hereof, each Participating Dealer) severally agrees to indemnify and hold harmless
(i) the Issuers and the Guarantors, (ii) each of the directors of the Issuers and the
Guarantors, (iii) each of the officers of the Issuers who signs such Registration Statement
and (iv) each Person who controls any of the Issuers within the meaning of either the
Securities Act or the Exchange Act to the same extent as the foregoing indemnity from the
Issuers and the Guarantors to each such Holder, but only with respect to written
information furnished to the Issuers by or on behalf of such Holder (including the Initial
Purchasers and any Participating Dealer) specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability that any such Holder (including the Initial Purchasers and any Participating
Dealer) may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve the indemnifying party from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses, and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint
20
counsel (including local counsel) of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those available
to the indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the indemnifying
party shall authorize in writing the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6
is unavailable to or insufficient to hold harmless an indemnified party for any reason
(other than by virtue of the failure of an indemnified party to notify the indemnifying
party of its right to indemnification pursuant to subsection (a) or (b) of this Section 6,
where such failure materially prejudices the indemnifying party (through the forfeiture of
substantial rights and defenses)), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation to
contribute to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or defending the same)
(collectively “Losses”) to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such indemnifying party, on
the one hand, and such indemnified party, on the other
21
hand, from the Initial Placement and the Registration Statement that resulted in such
Losses; provided, however, that in no case shall the Initial Purchasers or
any subsequent Holder of any Note be responsible, in the aggregate, for any amount in
excess of the purchase discount or commission applicable to such Note, or in the case of an
Exchange Note, applicable to the Initial Note that was exchangeable into such Exchange
Note, as set forth on the cover page of the Offering Memorandum, nor shall any underwriter
be responsible for any amount in excess of the underwriting discount or commission
applicable to the Notes purchased by such underwriter under the Registration Statement that
resulted in such Losses. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Issuers shall be deemed to be equal to the total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover page of the
Offering Memorandum. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover page of the
Offering Memorandum, and benefits received by any other Holders shall be deemed to be equal
to the value of receiving Notes registered under the Securities Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of the
Registration Statement that resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified party, on the
other hand. The parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation that did not take
account of the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and Affiliate of such Holder shall have
the same rights to contribution as such Holder, and each person who controls the Issuers
within the meaning of either the Securities Act or the Exchange Act, each officer of each
Issuer who shall have signed the Registration Statement and each director of each Issuer
shall have the same rights to contribution as the Issuers, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder or the Issuers or any of the
officers, directors or controlling persons referred to in
22
Section 6 hereof, and will survive the sale by a Holder of Notes covered by a
Registration Statement.
(a) Except as otherwise provided for in subsections (c), (d), (e) and (g) below, the
Initial Purchasers agree not to enforce any obligation of Avago Technologies GmbH (the
“German Guarantor”) under this Agreement (for the purposes of this Section 7, collectively,
the “Claims”) against the German Guarantor if and to the extent that such enforcement would
otherwise result in the German Guarantor’s net assets (Eigenkapital within the meaning of
Section 266 paragraph 3 A of the German Commercial Code (Handelsgesetzbuch)) falling below
the amount of its stated share capital (Stammkapital) or increase any existing capital
impairment (Begründung oder Vertiefung einer Unterbilanz) in the meaning of Sections 30 and
31 of the German Act on Limited Liability Companies (GmbHG). In calculation of the net
assets and the stated share capital any indebtedness and other contractual liabilities
incurred by the German Guarantor in violation of the Indentures or any increases of the
stated share capital of the German Guarantor in violation of the Indentures shall be
disregarded. Any recourse claim of the German Guarantor against its affiliated companies
shall not be regarded as an asset in determining the German Guarantor’s net assets, if and
to the extent that the German Guarantor provides evidence, to the reasonable satisfaction
of the Trustee under the Indentures, that such recourse claim is of no value (nicht
werthaltig).
(b) If and to the extent legally permissible and commercially justifiable in respect
of the German Guarantor’s business, the German Guarantor shall, following the receipt of an
Enforcement Notice (as defined below), if and to the extent:
(i) it does not have sufficient assets to allow an enforcement of any
collateral in accordance with Section 7(a) above; and
(ii) the Initial Purchasers would (but for this paragraph) be entitled to
enforce the Claims granted hereunder,
realize any and all of its assets that are shown in the balance sheet with a book value
(Buchwert) which is substantially lower than the market value of such assets, and which are
not essentially necessary for the German Guarantor’s business (betriebsnotwendig).
(c) The limitations set out in Section 7(a) shall only apply if and to the extent that
the German Guarantor evidences by providing the Initial Purchasers:
(i) within ten (10) Business Days following a notice by the Initial Purchasers
to the Company of their intention to enforce the Claims (for purposes of this
Section 7, the “Enforcement Notice”), with a written confirmation by the managing
director(s) on behalf of the German
23
Guarantor specifying if and to what extent Claims granted hereunder cannot be
enforced as it would cause the net assets of the German Guarantor to fall below the
amount of its stated share capital (supported by evidence further specified in the
last paragraph of this paragraph (c)) (for purposes of this Section 7, the
“Management Determination”) and the Initial Purchasers have not contested this
Management Determination and argued that no or a lesser amount would be necessary
to maintain the German Guarantor’s stated share capital; or
(ii) within thirty (30) Business Days after the date on which the Initial
Purchasers have contested the Management Determination, with a written confirmation
(Bescheinigung aufgrund prüferischer Durchsicht) by the German Guarantor’s
statutory auditor (Abschlussprüfer) (for purposes of this Section 7, the “Auditor’s
Determination”) with respect to the financial statements provided to the Initial
Purchasers pursuant to the next paragraph.
The Management Determination shall be supported by (i) a list of indebtedness drawn by or
passed on to, the German Guarantor pursuant to Section 7(g) below, and (ii) evidence
reasonably satisfactory to the Initial Purchasers showing the amount of the net assets and
the stated share capital of the German Guarantor.
(d) If the Initial Purchasers disagree with the Auditor’s Determination, the Initial
Purchasers shall be entitled to enforce the Claims up to the amount which is undisputed
between the Initial Purchasers and the German Guarantor in accordance with the provisions
of Section 7(a) above. In relation to the amount which is disputed, the Initial Purchasers
shall be entitled to further pursue their claims (if any) and the German Guarantor shall be
entitled to defend itself in court and to prove that this amount is necessary for
maintaining its stated share capital (calculated as of the date that the Enforcement Notice
was given). If, after the Initial Purchasers has been provided with an Auditor’s
Determination which prevented the Initial Purchasers from the enforcement of the German
Guarantor’s obligations, the Initial Purchasers ascertains in good faith that the financial
condition of the German Guarantor has substantially improved (in particular if the German
Guarantor has taken any action in accordance with Section 7(b) above), the Initial
Purchasers may, at the German Guarantor’s cost and expense, arrange for the preparation of
an updated balance sheet of the German Guarantor by the auditors having prepared the
Auditor’s Determination in order for such auditors to determine whether (and if so, to what
extent) an enforcement would not lead to the German Guarantor’s net assets falling below
the amount of its stated share capital.
(e) If any enforcement action was taken without limitation because the Management
Determination and/or the Auditor’s Determination (as the case may be) was not delivered
within the relevant time frame, the Initial Purchasers shall repay to the German Guarantor
any amount which is necessary to maintain its
24
stated share capital, calculated as of the date that the Enforcement Notice was given.
(f) In addition, the Claims shall not be enforced if and to the extent that such
enforcement would lead to a breach of the prohibition of insolvency causing intervention
(Verbot des existenzvernichtenden Eingriffs) by depriving the German Guarantor of the
liquidity necessary to fulfill its financial liabilities to its creditors.
(g) Notwithstanding paragraphs (a) through (f) above, the Initial Purchasers shall be
entitled to enforce the Claims without any limitation if and to the extent the Claims
correspond to proceeds or portions of proceeds from the sale of the Notes by any Issuer or
any of its affiliates to the extent the funds will be borrowed by, passed on or otherwise
made available to the German Guarantor, to the extent outstanding at the level of the
German Guarantor and including interest and fees accrued thereon and unpaid by the German
Guarantor as of the date that the Enforcement Notice was given.
(h) In connection with the execution and delivery by Xxxxxx Xxx-Xxxx Xxx and/or Xxxx
Xxxxxxx Xxxxxxx and/or Xxxx Xxxxxxx Xxxxx Xxxxxxxx and/or Xxxxxx Xxxxx Xxxxxxxx, on behalf
of Avago Technologies México, S. de X.X. de C.V., of the Guarantee, of this Agreement and
any and all documents related hereto, including the Operative Agreements, all parties
hereto hereby irrevocably waive any rights that they or any beneficiaries under this
Agreement or any document related hereto, including any of the Operative Agreements, may
now or in the future have against any of the above mentioned individuals as
attorney-in-fact and representative of Avago Technologies México, S. de X.X. de C.V. under
Article 7 of the Commercial Companies Act (Ley General de Sociedades Mercantiles) of
Mexico.
(i) Avago Technologies UK Limited shall not have any obligation or liability under
this Agreement which, if is were so included in this Agreement (or any part thereof) would
constitute unlawful financial assistance for the purpose of section 151 and 152 of the UK
Companies Xxx 0000 and such obligation or liability shall be specifically excluded.
(j) Notwithstanding any other provision of this Agreement, Avago Technologies Italy
S.R.L. shall only be liable up to the amount of the lower of (i)100.0% of the principal
aggregate amount of the Notes allocated to Avago Technologies Italy S.R.L. by the Issuers,
and (ii) the amount of the Notes allocated to Avago Technologies Italy S.R.L. at the time
of the enforcement of the Guarantee.
The Issuers hereby agree with each Holder, for so long as any Transfer Restricted Securities
remain outstanding, to make available to any Holder or beneficial
25
owner of Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner,
the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of
such Transfer Restricted Securities pursuant to Rule 144A.
No Holder may participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder’s Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve such arrangements
and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
The Holders of Transfer Restricted Securities covered by the Shelf Registration Statement who
desire to do so may sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities included in such offering; provided, that
such investment bankers and managers must be reasonably satisfactory to the Issuers.
(a) No Inconsistent Agreement. The Issuers and the Guarantors have not, as of
the date hereof, entered into, nor shall they, on or after the date hereof, enter into, any
agreement that conflicts with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given, unless the
Issuers have obtained the written consent of the Holders of at least a majority of the then
outstanding aggregate principal amount of Notes (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of Exchange Notes); provided that, with
respect to any matter that directly or indirectly affects the rights of the Initial
Purchasers hereunder, the Issuers shall obtain the written consent of a majority of the
Initial Purchasers. Notwithstanding the foregoing (except the foregoing proviso), a waiver
or consent to departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose Notes are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other Holders may
be given by the Majority Holders, determined on the basis of Notes being sold rather than
registered under such Registration Statement.
26
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder to the
Issuers in accordance with the provisions of this Section 11(c), which address
initially is, with respect to each Holder, the address of such Holder maintained by
the Trustee, with a copy in like manner to Xxxxxx Brothers Inc.;
(ii) if to the Initial Purchasers, shall be delivered or sent by mail, telex
or facsimile transmission to the care of Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department (Fax: (000) 000-0000),
with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxx Xxxxxx, Esq. (Fax: 000 000-0000) and, in the case of any
notice pursuant to Section 6(d), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx
Xxxx 00000 (Fax: (000) 000-0000); and
(iii) if to the Issuers and the Guarantors, shall be delivered or sent by
mail, telex or facsimile transmission to the Company, 000 Xxxx Xxxxxxx Xxxx, Xxx
Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxx (Fax: (000) 000-0000), and to
Avago Technologies International Sales Pte. Limited, 0 Xxxxxx Xxxxxx 0, Xxxxxxxxx,
Attention: Bian-xx Xxx; with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, III, Esq.
(Fax: (000) 000-0000.
All such notices and communications shall be deemed to have been duly given when
received. The Initial Purchasers, on the one hand, or the Issuers and the Guarantors, on
the other, by notice to the other party or parties may designate additional or different
addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including, without the
need for an express assignment or any consent by the Issuers thereto, subsequent Holders of
Initial Notes and/or Exchange Notes. The Issuers and the Guarantors hereby agree to extend
the benefits of this Agreement to any Holder of Initial Notes and/or Exchange Notes and any
such Holder may specifically enforce the provisions of this Agreement as if an original
party hereto.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute
one and the same Agreement.
27
(f) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions hereof shall
not be in any way impaired or affected thereby, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent permitted by law.
(i) Initial Notes Held by the Issuers, Etc. Whenever the consent or approval
of Holders of a specified percentage of the aggregate principal amount of Initial Notes or
Exchange Notes is required hereunder, Initial Notes or Exchange Notes, as applicable, held
by the Issuers or their Affiliates (other than subsequent Holders of Initial Notes or
Exchange Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Initial Notes or Exchange Notes) shall not be counted in determining
whether such consent or approval was given by the Holders of such required percentage.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
Please confirm that the foregoing
correctly sets forth the
agreements under the Registration Rights Agreement between the
Issuers, the Guarantors and you.
| Very Truly yours, |
| AVAGO TECHNOLOGIES FINANCE PTE. LTD. | ||
| The Common Seal of AVAGO TECHNOLOGIES FINANCE PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES U.S. INC. | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Vice President | ||||
| AVAGO TECHNOLOGIES WIRELESS (U.S.A.) MANUFACTURING INC. | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Vice President | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES GENERAL
IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES ECBU IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES ECBU IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES MANUFACTURING (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES MANUFACTURING (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES
INTERNATIONAL SALES PTE. LIMITED |
||
| The Common Seal of AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES WIRELESS
IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES WIRELESS IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES IMAGING
IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES IMAGING IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES ENTERPRISE
IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES ENTERPRISE IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES STORAGE
IP (SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES STORAGE IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES FIBER IP
(SINGAPORE) PTE. LTD. |
||
| The Common Seal of AVAGO TECHNOLOGIES FIBER IP (SINGAPORE) PTE. LTD. was hereunto affixed |
) ) ) |
[Seal] |
| /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | ||
| Title: Director | ||
| /s/ Xxxx X. Xxxxxxx | ||
| Name: Xxxx X. Xxxxxxx | ||
| Title: Director | ||
[SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES IMAGING (U.S.A.) INC., as U.S. Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Vice President | ||||
| AVAGO TECHNOLOGIES STORAGE (U.S.A.) INC., as U.S. Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx Title: Vice President |
||||
| AVAGO TECHNOLOGIES WIRELESS (U.S.A.) INC., as U.S. Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Vice President | ||||
| AVAGO TECHNOLOGIES U.S. R&D INC., as U.S. Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Vice President | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES (MALAYSIA) SDN BHD (Company No: 704181-P), as Malaysian Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Director | ||||
| AVAGO TECHNOLOGIES WIRELESS HOLDING (LABUAN) CORPORATION (Company No: LL05008), as Labuan Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx Title: Director |
||||
| AVAGO TECHNOLOGIES IMAGING HOLDING (LABUAN) CORPORATION (Company No: LL05006), as Labuan Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES FIBER HOLDING (LABUAN) CORPORATION (Company No: LL05009), as Labuan Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Director | ||||
| AVAGO TECHNOLOGIES STORAGE HOLDING (LABUAN) CORPORATION (Company No: LL0507), as Labuan Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx Title: Director |
||||
| AVAGO TECHNOLOGIES ENTERPRISE HOLDING (LABUAN) CORPORATION (Company No: LL05005), as Labuan Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES HOLDINGS B.V., as Dutch Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Managing Director | ||||
| AVAGO TECHNOLOGIES WIRELESS HOLDINGS B.V., as Dutch Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx Title: Managing Director |
||||
| AVAGO TECHNOLOGIES STORAGE HOLDINGS B.V., as Dutch Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Managing Director | ||||
| AVAGO TECHNOLOGIES IMAGING HOLDINGS B.V., as Dutch Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Managing Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES JAPAN, LTD., as Japanese Guarantor | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Attorney-in-fact | ||||
| AVAGO TECHNOLOGIES CANADA CORPORATION, as Canadian Guarantor | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx Title: President |
||||
| AVAGO TECHNOLOGIES MEXICO, S. DE X.X. DE C.V., as Mexican Guarantor | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Attorney-in-fact | ||||
| AVAGO TECHNOLOGIES U.K. LTD., as U.K. Guarantor | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES GMBH, as German Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Managing Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| AVAGO TECHNOLOGIES ITALY S.R.L., as Italian Guarantor | ||||
| By: | /s/ Xxxxxxx X. Xxx | |||
| Name: Xxxxxxx X. Xxx | ||||
| Title: Director | ||||
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
| The foregoing Agreement is hereby | ||||||
| accepted as of the date first above written. | ||||||
| Xxxxxx Brothers Inc. | ||||||
| By: | /s/ Xxxx-Xxxxxxxx Astier | |||||
| Name: | Xxxx-Xxxxxxxx Astier | |||||
| Title: | MD | |||||
| For itself and as representative | ||||||
| of the several Initial Purchasers named | ||||||
| in Schedule 1 to the Purchase Agreement. | ||||||
Signature Page to Avago Registration Rights Agreement